Andhra HC (Pre-Telangana)
Polavarapu Jagadiswararao vs Kondapaturi Venkateswarlu And Anr. on 16 November, 1990
Equivalent citations: 1991(1)ALT70, 1991CRILJ1419
ORDER
1. This is a petition filed to quash the proceedings in C.C. No. 6 of 1989 on the file of the 2nd Addl. Munsif Magistrate, Chirala.
2. The brief facts of the case are : The petitioner herein worked as a Principal of the V.R.S. and Y.R.N. College, Chirala during 1966 to 31-3-1989. The respondent-complainant is working as a U.D.C. (Upper Division Clerk) in the same college. He filed a complaint u/Ss. 406 and 408, I.P.C. against the petitioner in the Court below alleging that the respondent misappropriated funds of the college running to about Rs. 9,71,101/- during the period he worked in the College as the Principal.
3. The main contention of Mr. S. Venkata Reddy, the learned counsel for the petitioner, is that the complainant has no locus standi to file the complaint since he is not the aggrieved party and that if at all it is for the Management of the College or the Government to launch any prosecution against the petitioner.
4. To deal with this contention it is first necessary to make a reference to the relevant provisions in Chapter XV of the Cr.P.C. providing for filing of complaints and the procedure to be adopted in relation thereof. S. 200, Cr.P.C., envisages examination of the complainant and the witnesses present and recording their sworn statement by the Magistrate before taking cognizance of an offence on a complaint. U/S. 202, Cr.P.C., after following the procedure envisaged by a S. 200 and if he is competent to try the offence complained of the Magistrate may either inquire into the case himself or direct investigation to be made by the Police u/S. 156, Cr.P.C., after postponing the issue of process. It is nowhere stated in Chapter XV that the complaint has to be filed by the aggrieved person alone. Further S. 190, Cr.P.C., empower the Court having jurisdiction to try the offence to take cognizance of the offence (i) on receiving a complaint from a private citizen, (ii) on receiving a report from police or (iii) on receiving information from any person other than police or (iv) upon his own knowledge. Thus, the scheme of the Code permits taking cognizance of an offence, whether or not the complaint is filed by the aggrieved party, after following the procedure according to law. The exception to this principle is provided in Ss. 195 to 199, Cr.P.C. The Supreme Court in G. Narasimham v. T. V. Chokkappa, while holding that the general rule is that a complaint can be filed by anybody whether he is an aggrieved person or not, observed that S. 198, Cr.P.C., is an exception by way of modification to that rule permitting only an aggrieved person to move a magistrate in cases of defamation. The Supreme Court further held that the S. 198 is mandatory so that if a magistrate were to take cognizance of the offence of defamation on a complaint filed by one who is not an aggrieved person, the trial and conviction would be vitiated. In Vishwa Mitter v. O. P. Peddar, the view of the Supreme Court is to the same effect, viz., the Magistrate would be as a general rule competent to take cognizance of the offence irrespective of the qualifications or eligibility of the complainant to file the complaint. However, where a provision to the contrary, presently Ss. 195 to 199, Cr.P.C., is made in any statute, which may indicate the qualification or eligibility of a complainant to file the complaint, the Magistrate before taking cognizance is entitled and has power to inquire whether the complainant satisfies the eligibility criteria. In A. R. Antulay v. R. S. Nayak, the Supreme Court reiterated its view (at page 651; 1984 Cri LJ) :-
"It is well recognised principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary ......... Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statute creating an offence provides for the eligibility of the complainant, by necessary implication the general principle gets excluded by such statutory provision."
As stated supra, the only exception to the general rule that any one can set the criminal law into motion and that locus standi of the complainant is a concept foreign to criminal jurisprudence is indicated in Ss. 195 to 199, Cr.P.C.
5. It is, therefore, necessary to examine whether Ss. 195 to 199, Cr.P.C., are attracted in the present case so as to oust the jurisdiction of the criminal Court in entertaining the above calendar case. S. 195 while prescribing the qualification to the complainant as a particular authority or party named in it, confines its operation to the specified sections, viz. 172 to 188, 193 to 196, 199, 200, 205 to 211, 463, 471, 475 or 476 of the I.P.C. Similarly, S. 196, Cr.P.C., confines the offences for its operation to Ss. 153-A, 295-A, 505, 108-A, 153-B and 120-B of the I.P.C. S. 197. Cr.P.C., refers to prosecution of public servants and mandates prior sanction of the Central or State Government. Then, Ss. 198 and 199 respectively refer to offences relating to marriages and defamation and prescribe a qualification to the complainant by stating that he should be the aggrieved person. The offences complained of in the instant case are u/Ss. 406 and 405. I.P.C., and the accused-petitioner was not, admittedly, a public servant to attract S. 197, Cr.P.C. Thus, none of the Ss. 195 to 199 Cr.P.C., govern the case on hand and therefore it is the general principle, viz. any citizen can file a complaint u/S. 200, Cr.P.C., before a competent Magistrate, that holds the field. Accordingly the contention based on the concept of locus standi is without merit and accordingly rejected.
6. The learned counsel next contended that when a citizen can make a written or oral report to the police so as to set the law in motion and this course would eliminate the vindicativeness, inasmuch as the agency of police being an independant one would file the charge-sheet after investigation if only there is a prima facie case for purposes of prosecution, the respondent complainant would have opted that course and not having done so, the present proceedings are liable to be quashed. No doubt, u/S. 154, Cr.P.C., every citizen is entitled to give information to the police regarding the commission of the cognizable offence, on receipt of which the police would make investigation into the offence u/S. 156, Cr.P.C., and may file a charge-sheet if there is a prima facie case found out or file a referred report otherwise. It is thus seen that the police are empowered to receive the information regarding an offence, investigate into it and file a charge-sheet or a referred report. At the same time, the Legislature enacted specific provisions enabling a private citizen to move the Court direct by filing a complaint u/S. 200, Cr.P.C., on receipt of which the Magistrate would record sworn statements of the complainant and witnesses, if any, present and if satisfied that there exists a prima facie case would take cognizance of the offence u/S. 190(1)(a), Cr.P.C. He is also empowered to postpone the issue of process against the accused u/S. 202, Cr.P.C. in which event he may inquire into the case direct himself or refer the case to the police for investigation. Thus, both the courses u/S. 154 and u/S. 200, Cr.P.C. are open and available to a private citizen and therefore simply because there is a right u/S. 154, Cr.P.C., consequent upon which the police would investigate, it cannot be said that the right u/S. 200, Cr.P.C. is not available for purposes of taking recourse. Accordingly I see no force in this contention also.
6A. It is also contended by the learned counsel for the petitioner that even if a complaint is filed u/S. 200, Cr.P.C., the Court below before taking cognizance of the offence ought to have referred the same to the police u/S. 156(3), Cr.P.C., so that after investigation the Court would have had before it the required material to find out whether or not there is a prima facie case to take cognizance of the offence. As noted supra, on receipt of a complaint u/S. 200, Cr.P.C., the Magistrate shall record the sworn statements of the complainant and the witnesses, if any, present and (i) may take cognizance of the offence u/S. 190(1)(a) and issue process, or (ii) postpone the issue of process u/S. 202 and (a) inquire into the case himself or (b) direct investigation by police. Thus, the discretion u/S. 202, Cr.P.C., lies with the Magistrate either to inquire into the case himself or direct investigation by the police. It is also open to the Magistrate to issue or postpone issue of process. While exercising his discretion, the Magistrate scrutinises the complaint, the sworn statement of the complainant and also of those recorded from the witnesses, if any, and then arrives at a decision as to whether to take cognizance of the offence u/S. 190(1)(a) or to postpone issue of process u/S. 202, Cr.P.C. or to refer the case to the police u/S. 156(3), Cr.P.C. for investigation. It is only in case of deciding that the material is not sufficient to take cognizance of the offence he may refer the matter to the police u/S. 156(3) for purposes of investigation. Therefore, when once the Magistrate after scrutinising the complaint, the sworn statements and other material comes to the conclusion that he can take cognizance of the offence, there is no need to have a resort to S. 156(3). In the present case, as per the allegations made in the complaint and other material available, it cannot be said that the Magistrate has not applied his mind properly in taking cognizance of the offence.
7. The learned counsel in support of his submission that the proceedings in the calendar case are to be quashed sought to place reliance upon a decision of the Supreme Court in State of Assam Abdul Noor, . That is a case where a complaint was filed alleging that one Ahmed in collusion with a Doctor and nurse caused forcible abortion on a minor girl by name Amina Khatoon. There, the very girl Amina Khatoon gave a statement that she married one Noor and conceived by him and that she wanted to go back to the house of her master Ahmed and live there. In those circumstances since the very complaint as to forcible abortion was completely repelled by the affidavit of Amina, the proceedings arising out the said complaint were quashed. The facts of that case are, thus, totally different and have no application to the present ones.
8. The learned counsel lastly contended that in the complaint filed there is an allegation that one Brahmiah submitted an audit report in which there is a reference to the misappropriation commited by the petitioner, but actually the said report does not recite any such misappropriation by the petitioner and therefore the very complaint is false warranting the proceedings arising thereunder liable to be quashed. The learned counsel also produced the said report. This court while exercising jurisdiction u/S. 482, Cr.P.C. to quash the proceedings, I am of the opinion, would not appreciate the evidence inasmuch as it is the function of the trial Court.
9. In view of the above, I find no ground to quash the proceedings sought for. The petition is accordingly dismissed.
10. Petition dismissed.